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Can You be Sued for Discriminating on the Basis of an Employee’s Size or Weight?


Imagine that you have an employee, and the employee is not performing up to standards. You fire, or demote that employee. The employee, a larger person, then contends that you fired him or her, because of size—that is, the employee accuses you of discriminating because of his or her obesity condition.

Can you be sued for this? There are so many protected classes and conditions that protect employees—is size, or obesity one of them?

What is Protected Under the ADA?

Generally, physical characteristics are not protected under the ADA, assuming that they are not caused by an underlying protected disability. To be protected under the ADA, a condition or ailment must restrict or “substantially limit” a “major life activity” (note that this is a major life activity—not just an activity required at work).

No Laws Protect Obesity

Florida employers need not worry, because neither Florida nor federal law protects size, obesity, or treats either as a protected class for the purpose of employment discrimination. You simply cannot be sued for discrimination based on size or weight. However, that is not the end of the inquiry, because weight may accompany other conditions or classes that are protected.

Other Conditions Related to Obesity

Obesity itself, with no other medical condition, is not protected under the Americans With Disabilities Act (ADA), and thus, you cannot be sued for discriminating against obese employees. However, conditions that may attach to obesity, may be protected.

For example, an obese employee may have diabetes, or back problems, a thyroid condition, or peripheral artery disease, or any other number of opportunistic diseases, conditions or ailments, that are caused by the obesity which are covered under the ADA. If you fire an overweight employee because he or she needs breaks because of her diabetes, you could be sued under the ADA.

It can work the other way as well—someone may have a condition that causes obesity. Many illnesses, medications, or medical treatments, have the side effect of weight gain. If you discriminate against someone in this situation, the employee could say you aren’t discriminating against him for obesity—rather, you are discriminating against him for the condition causing the obesity, an ADA-protected condition.

Other Types of Discrimination

Note as well that in many cases, discrimination on weight, is paired with other kinds of illegal forms of discrimination. So, for example, an insult that demeans both someone’s size and gender, or size and nationality, will be seen as discriminating on the basis of gender or nationality.

Comments made to overweight women and not men, or overweight elderly people, and not young people, also will be seen as discrimination, as people of one protected class are being treated differently than others.

If a man is allowed to work in a given job or position at work despite being obese, and a woman is not, or the woman is fired, this won’t be seen as legal weight discrimination—it will be seen as illegal gender discrimination.

Stay safe running your business, and avoid employment related lawsuits. Call the West Palm Beach business litigation lawyers at Pike & Lustig today.





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